Judge Sotomayor and Abortion

Posted Sun, May 31st, 2009 1:38 pm by Tom Goldstein

Abortion is obviously an important issue for the Supreme Court, and each nominee's view on the question whether and to what extent the Constitution guarantees a right to abortion is carefully scrutinized.

Judge Sotomayor has never participated in a panel opinion, or decided a case as a district judge, involving that question.Nor, so far as I am aware, has she addressed the issue publicly.

Having comprehensively reviewed her opinions, my view is that the marginally related cases she has decided do not provide any genuine insight on how she would rule on questions related to a constitutional right to abortion, but they do show a level of balance that indicates that her decisionmaking is not driven by pro-choice or pro-life views.

Her most notable opinion in this field is her dissent from the en banc Second Circuit's holding that a spouse's forced abortion or sterilization cannot support a claim of persecution.Lin v. United States DOJ, 494 F.3d 296 (2d Cir. 2008) (en banc); see also id. at 334 (discussing with approval Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004) (Alito, J.)).

Judge Sotomayor also has opinions on both sides of issues relating to abortion protesters.She twice wrote opinions reinstating a civil rights suit alleging that police used excessive force in removing anti-abortion protesters:Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004); Amnesty America v. Town of West Hartford, 288 F.3d 567 (2d Cir. 2002).On the other hand, in United States v. Lynch, 181 F.3d 330 (2d Cir. 1999), she joined a dissent from the denial of rehearing en banc in a case in which she supported the government’s right to prosecute abortion protesters for criminal contempt.

Finally, in Center for Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), she wrote an opinion holding settled precedent precluded a challenge to the "Mexico City policy" (since withdrawn by President Obama) prohibiting the distribution of federal foreign aid funds to organizations that perform or promote abortion as a method of family planning.

On the whole, my impression of Judge Sotomayor's opinions and rulings in this area is that they depend very much on the particular facts and questions before the court and aren't driven in any respect by a broader pro-choice or pro-life ideology.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.